Appeal from the United States District Courtfor the Northern District of CaliforniaD. Lowell Jensen, District Judge, PresidingArgued and SubmittedOctober 8, 1997--San Francisco, CaliforniaFiled October 6, 1998Amended October 28, 1999Before: Betty B. Fletcher, Charles Wiggins, andPamela Ann Rymer, Circuit Judges.Opinion by Judge Wiggins; Dissent by Judge B. Fletcher
_____________________________COUNSEL Robert W. Rychlik, Cupertino, California, and Richard L.Davis, Menlo Park, California, for the plaintiff-appellant.Raymond W. Thomas and Marita T. Covarrubias, Loeb &Loeb, Los Angeles, California, for the defendant-appellee.ORDERThe opinion filed on October 6, 1998, published at 157F.3d 744 (9th Cir. 1998), is amended as follows. The portionof the opinion (1) beginning with the first complete paragraphin the right-hand column of 157 F.3d at 750, which starts withthe words "Notwithstanding the Rehabilitation Act cases,"and (2) continuing to the end of Section (2)(b)(i) of the opin-ion, which ends near the bottom of the left-hand column of157 F.3d at 751 with the words "within its seniority systemas an accommodation of his disability," shall be deleted andreplaced with the text below.The ADA's ambiguous legislative history is of little help indetermining whether seniority policies should be treated thesame under the ADA and the Rehabilitation Act. On onehand, there is evidence that Congress considered seniorityrights to be merely one factor in reasonable accommodationanalysis under the ADA, rather than a dispositive factor. SeeS. REP. NO. 101-116, at 32 (1989) ("The collective bargainingagreement could be relevant, however, in determiningwhether a given accommodation is reasonable. For example,if a collective bargaining agreement reserves certain jobs foremployees with a given amount of seniority, it may be consid-ered as a factor in determining whether it is a reasonableaccommodation to assign an employee with a disability with-out seniority to that job."); H.R. REP. NO. 101-485, pt. 2, at63 (1990) (same language), reprinted in 1990 U.S.C.C.A.N.303, 345. On the other hand, the House and Senate Reportsalso state that reasonable accommodation does not require"bumping" a more senior employee to create a vacancy(although if the employer chose to do so, such bumpingwould constitute reasonable accommodation). See S. REP. NO.101-116, at 32 (1989); H.R. REP. NO . 101-485, pt. 2, at 63(1990), reprinted in 1990 U.S.C.C.A.N. 303, 345.In the face of this ambiguity, we are persuaded by well-reasoned opinions from other circuits that have concluded thatthe ADA does not require an employer to give disabledemployees preference over nondisabled employees in hiringand reassignment decisions. But this is precisely what Barnettrequests. U.S. Air's seniority system is a decades-old systemwhich controls the duty assignments, shifts, transfers, holi-days, etc. of U.S. Air's approximately fourteen thousand cus-tomer service agents. Barnett does not claim that U.S. Air'spolicy is illegitimate and an excuse for unlawful discrimina-tion. But Barnett does claim that U.S. Air should have lefthim in the mailroom position, thus excepting him from itsseniority policy, because of his disability. Although manyADA cases have held that reasonable accommodation doesnot require exempting a disabled employee from a collec-tively bargained seniority system, see, e.g., Foreman v. Bab-cock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997);Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912-13 (7th Cir.1996); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051(7th Cir. 1996) (adopting a "per se" rule that reasonableaccommodation does not require "sacrificing the collectivelybargained, bona fide seniority rights of other employees");Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8thCir. 1995), Barnett argues that his case is different becauseU.S. Air's seniority policy is not the result of a collective bar-gaining agreement. We reject this argument and agree with aFifth Circuit panel that, in dicta, found Barnett's claimed dis-tinction to be irrelevant. In Foreman v. Babcock Wilcox Co.,117 F.3d 800 (5th Cir. 1997), the Fifth Circuit rejected a dis-abled employee's claim that the ADA required his employerto reassign him to a new position even in the face of a collec-tively bargained seniority provision that would prohibit therequested transfers. The Court rejected the employee's argu-ment, making clear that its decision was not based on the spe-cial status of collective bargaining agreements. [E]ven if there were no CBA in place, B & W would not be obligated to accommodate Foreman by reas- signing him to a new position. "[W]e do not read the ADA as requiring affirmative action in favor of indi- viduals with disabilities, in the sense of requiring disabled persons be given priority in hiring or reas- signment over those who are not disabled. It prohib- its employment discrimination against qualified individuals with disabilities, no more and no less."Foreman, 117 F.3d at 810 (quoting Daugherty v. City of ElPaso, 56 F.3d 695 (5th Cir. 1995)).We agree with the Daugherty court and the other circuitsthat have interpreted the ADA as requiring no more thanequality among disabled and nondisabled employees in hiringand reassignment decisions. This principle was well articu-lated by a recent Seventh Circuit panel: While Congress enacted the ADA to establish a "level playing field" for our nation's disabled work- ers, it did not do so in the name of discriminating against persons free from disability. Restated, the ADA does not mandate a policy of "affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given pri- ority in hiring or reassignment over those who are not disabled."Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7thCir. 1998) (quoting Daugherty, 56 F.3d at 700); see alsoDalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679(7th Cir. 1998) ("[W]e have been unable to find a single ADAor Rehabilitation Act case in which an employer has beenrequired to reassign a disabled employee to a position whensuch a transfer would violate a legitimate, nondiscriminatorypolicy of the employer, and for good reason. The contrary rulewould convert a nondiscrimination statute into a mandatorypreference statute, a result which would be both inconsistentwith the nondiscriminatory aims of the ADA and an unrea-sonable imposition on the employers and coworkers of dis-abled employees.") (internal citations omitted); Wernick v.Federal Reserve Bank of New York, 91 F.3d 379, 384-85 (2dCir. 1996) ("Congress intended simply that disabled personshave the same opportunities available to them as are availableto nondisabled persons."); Duckett v. Dunlop Tire Corp., 120F.3d 1222, 1225 (11th Cir. 1997) ("We are aware of no caseunder either the ADA or the Rehabilitation Act where anemployer has been required to transfer an employee toanother position where the employer (independent of con-cerns about disability) has a business policy against the perti-nent kind of transfer."). But see Aka v. Washington HospitalCenter, 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc) (not-ing that "[a]n employer is not required to reassign a disabledemployee in circumstances `when such transfer would violatea legitimate, nondiscriminatory policy of the employer,' " butalso arguing against the dissent's claim that the ADA"mandat[es] nothing more than that the employer allow thedisabled employee to submit his application along with all ofthe other candidates.").Because Barnett's proposed accommodation would violateU.S. Air's legitimate seniority policy, we find that the pro-posed accommodation is unreasonable under the ADA.
_____________________________ORDER The Dissent filed on October 6, 1998, published at 157F.3d 754 (9th Cir. 1998) is amended as follows:In the first paragraph of the dissent, on page 754, the sen-tence beginning with the words "Second, while stating" shallbe deleted and replaced with the text below: "Second, the majority establishes a rule rejecting accommodations under the ADA in the context of all seniority systems, whether determined by collective bargaining or unilaterally imposed by employers."The text below shall be inserted as part of the first full para-graph on page 756, after the last sentence of that paragraphwhich ends with the words "an employer's failure to partici-pate or investigate." Fjellestad v. Pizza Hut of America, Inc., No. 98- 2071, 1999 WL 642958 (8th Cir. Aug. 25, 1999) (Finding that the failure of an employer to engage in an interactive process to determine whether reason- able accommodations are possible is prima facie evi- dence that the employer may be acting in bad faith.)Delete section a., entitled "U.S. Air's Seniority System",which begins with the last paragraph on page 756 and extendsthrough the paragraph on page 757 ending with the words"without undue disruption to its seniority system." Replacesection a. with the following text: a. U.S. AIR'S Seniority System The majority holds that U.S. Air's seniority sys- tem precludes leaving Barnett in the mailroom as a reasonable accommodation for his disability. The majority acknowledges that the legislative history does not clearly support its position and admits that no other circuit has held that ADA accommodation is precluded by a seniority system which is not the result of a collective bargaining agreement. The majority relies for its holding on dicta in a Fifth Cir- cuit opinion that is based on different facts. The majority cites a number of opinions from other circuits which have found that the ADA does not require exempting a disabled employee from a seniority system established by a collective bargain- ing agreement. It imposes the same rule in this case despite the fact that the U.S. Air's seniority system was unilaterally imposed by the employer and was not the product of a collective bargaining agreement. The majority holds that disabled workers requiring reasonable accommodation should have no priority in reassignment. Majority at 13036-37. This holding is in direct conflict with several circuits and the EEOC's own Enforcement Guidance. The EEOC's guidelines explicitly state that reassignment is a rea- sonable accommodation for which disabled employ- ees should have priority, even when transfers are normally not allowed: The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to oth- ers. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a dis- ability, unless it could show that the reas- signment caused an undue hardship. And, if an employer has a policy prohibiting trans- fers, it would have to modify that policy in order to reassign an employee with a dis- ability, unless it could show undue hard- ship. EEOC Enforcement Guidance: Reasonable Accom- modations and Undue Hardship under the Americans with Disabilities Act at 19 (1999). In Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998)(en banc), the D.C. Circuit rejected the view that the majority takes in this case, i.e., that the ADA requires "no more than equality among disabled and nondisabled employees" in reas- signment decisions. Majority at 13037. The Aka majority persuasively answered an argument identi- cal to that made by the majority here: "The dissent- ers misunderstand both the text and legislative history of the statute, and deviate from the construc- tion of the statute by other circuits . . . . Indeed the ADA's reference to reassignment would be redun- dant if permission to apply were all it meant." Id. at 1303. The Tenth Circuit, sitting en banc, also rejected the argument that the majority advances here. The Tenth Circuit concluded that "the reassignment obli- gation must mean something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position. Reassign- ment is, in fact, one of the forms of reasonable accommodation specifically mentioned by the statute to be utilized if necessary and reasonable to keep an existing disabled employee employed by the company." Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999)(en banc). Summary judgment was inappropriate in this case. Barnett met his prima facie burden of demonstrating a reasonable accommodation by allowing him to remain in the mailroom and eliminating only one position from the seniority bid process. The burden should now shift to U.S. Air to prove that the accom- modation is unreasonable or an undue hardship. 42 U.S.C. S 12112(5). In its rebuttal, U.S. Air offered only the statement of its vice President for Human resources and a copy of its seniority policy. U.S. Air claims that the effect of all potential ADA claimants would significantly disrupt the seniority system. Yet the record provides no information concerning the number of ADA claimants at U.S. Air, their senior- ity, or their need to be accommodated by exceptions to the seniority rules. Bald speculation on the part of the district court and an employer is insufficient to support summary judgment on a finding of "undue hardship." Nothing in the ADA supports finding that Barnett has the burden of proving that his proffered accommodation would satisfy all possible future claimants. Indeed, such proof would be outside the knowledge and control of almost all employees (and many employers).1 The majority errs in creating a blanket rule that directly conflicts with the EEOC Enforcement Guid- ance and that severely undermines the reasonable accommodation provisions of the ADA. U.S. Air has failed to demonstrate that accommodating Barnett would cause undue disruption to its seniority system and we should not assume so. Instead, we should find that a triable issue of fact remains to be resolved by the district court.
_____________________________OPINION WIGGINS, Circuit Judge:Robert Barnett appeals the district court's grant of sum-mary judgment in favor of his employer, U.S. Air, Inc., inBarnett's suit alleging discrimination and retaliation under theAmericans with Disabilities Act. We have jurisdiction under28 U.S.C. S 1291. For the following reasons, we affirm thedistrict court's summary judgment in favor of U.S. Air.I. FactsRobert Barnett worked for U.S. Air (and its predecessor)for ten years as a customer service agent. He worked in posi-tions at the gate, ticket counter, ramp area, air freight, cargo,and mailroom. As a U.S. Air employee, Barnett was subjectto U.S. Air's personnel policies, including its seniority sys-tem, which determines, among other things, duty assignments,shifts, promotions, and transfers.In 1990, Barnett injured his back while working in a cargoposition at San Francisco International Airport. After a leaveof absence, he returned to the cargo position but found that hecould no longer perform its physical requirements. Using hisseniority, Barnett transferred into a swing-shift position in themailroom.In March 1992, Barnett's doctor recommended that he notperform heavy lifting in order to avoid further back injury.The doctor concluded that Barnett's back would not beharmed by the requirements of the swing-shift mailroom posi-tion. Unfortunately, in August 1992, Barnett exacerbated hisback condition while pulling a mail cart. On August 17, a newdoctor informed U.S. Air that Barnett could return to workwithout restrictions. On August 19, however, the doctorimposed permanent restrictions on Barnett, prohibiting himfrom excessive bending, twisting, turning, prolonged standingor sitting, and from lifting twenty-five pounds or more.In August 1992, all of U.S. Air's cargo and mailroom posi-tions became open for bidding from employees according totheir seniority. Barnett learned that employees senior to himplanned to bid for the swing-shift mailroom position. Bar-nett's seniority would then only entitle him to a position incargo. On August 31, 1992, Barnett wrote to his manager,Robert Benson, asking for accommodation under the Ameri-cans with Disabilities Act ("ADA"). He asked U.S. Air tomake an exception for him within its seniority system andthereby allow him to remain in his mailroom position. Barnettdid not himself receive a written response to this letter, but,according to an interoffice memo, U.S. Air placed him on"limited duty" as of the next day, thereby creating an extraswing-shift mailroom position for him. Under U.S. Air's pol-icy, an employee usually may not work on limited duty formore than sixty work days. Barnett worked in his limited dutyposition for almost five months.On January 20, 1993, Barnett met with his supervisors.They told him that he could not remain in his limited dutyposition in the mailroom because he had been there well oversixty days and because he lacked the seniority to remain there.U.S. Air informed Barnett that he would be placed on jobinjury leave because his medical restrictions prevented himfrom performing all the duties of the cargo position, the posi-tion to which his seniority entitled him, and that they wouldcontinue his salary for one month. On February 21, 1993,U.S. Air ended Barnett's salary continuance.On January 23, 1992, Barnett wrote another letter to Ben-son suggesting two other forms of accommodation of his dis-ability. The first was to provide him with special liftingequipment for the cargo position. The second was to modifythe cargo position for him so that he would perform only deskwork and be able to avoid the warehouse lifting and movingwork. A few days later, U.S. Air received letters from two ofBarnett's doctors stating that his disability precluded himfrom any position other than the mailroom. U.S. Air deniedBarnett's new requests in March, and advised Barnett to bidfor another position.At the end of February 1993, Barnett filed a Charge of Dis-crimination with the Equal Employment Opportunity Com-mission ("EEOC"). The EEOC eventually granted Barnett theright to sue and, in November 1994, Barnett sued U.S. Air indistrict court for discrimination under the ADA for failure toaccommodate his disability and for retaliation, among otherclaims.The district court granted defendant U.S. Air summaryjudgment. The district court held that Barnett had establishedthe first element of his prima facie case by showing that hehad a disability within the meaning of the ADA. The districtcourt concluded, however, that Barnett's proposed accommo-dations of his disability were not reasonable. The court held,therefore, that U.S. Air did not discriminate against Barnett byfailing to retain him in the mailroom, to buy him special lift-ing equipment, or to modify the cargo position. The districtcourt further held that an employer may be liable under theADA for failing to engage in an "interactive process" with theemployee. The court found, however, that U.S. Air was not soliable because it had responded to Barnett's requests and wasnot at fault for the parties' failure to identify a reasonableaccommodation. The district court therefore granted U.S. Airsummary judgment on Barnett's discrimination claim underthe ADA. The court also granted U.S. Air summary judgmenton Barnett's retaliation claim, holding that Barnett had notshown a causal connection between his request for accommo-dation under the ADA and his placement by U.S. Air on jobinjury leave.Barnett appeals the summary judgment in favor in U.S. Airon his discrimination and retaliation claims.II. Standard of ReviewThis court reviews a grant of summary judgment de novo.See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152(9th Cir. 1997). The court must determine, viewing the evi-dence in the light most favorable to the nonmoving party,whether there is a genuine issue of material fact for trial, andwhether the district court correctly applied the substantivelaw. See id. The district court's grant of summary judgmentmay be affirmed on any ground in the record, whether or notthe district court relied on that ground. See id.III. DiscussionA. Americans with Disabilities Act[1] The Americans with Disabilities Act of 1990 ("ADA")protects the disabled in the workplace by prohibiting affectedemployers from, among other things, "not making reasonableaccommodations to the known physical or mental limitationsof an otherwise qualified individual with a disability who isan . . . employee, unless such [employer] can demonstrate thatthe accommodation would impose an undue hardship on theoperation of the business of such [employer]. " 42 U.S.C.S 12112(b)(5)(A).1. A Plaintiff's Prima Facie Case Under the ADA[2] In order to bring a claim under the ADA, a plaintiff-employee has the burden of showing that he or she is a"qualified individual with a disability." The plaintiff mustshow that he or she is "an individual with a disability who,with or without reasonable accommodation, can perform theessential functions of the employment position that such indi-vidual holds or desires." 42 U.S.C. S 12111(8); see alsoCooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir.1997); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9thCir. 1996). To establish a prima facie case, therefore, theplaintiff must show that (1) he or she is a disabled personwithin the meaning of the ADA, (2) he or she is able to per-form the essential functions of the job with or without reason-able accommodation, and (3) he or she suffered an adverseemployment decision because of his or her disability. SeeSS 12112(b)(5)(A) & 12111(8); see also Kennedy, 90 F.3d at1481.[3] In the case at hand, Barnett established the first andthird elements of his prima facie case: the district court heldthat he was a disabled person within the meaning of the ADA1and Barnett's disability was the reason for his placement onjob injury leave. The district court held, however, and weagree, that Barnett failed to establish the second element ofhis prima facie case. Specifically, as will be discussed in thefollowing section, Barnett failed to show that, with reasonableaccommodation, he would be able to perform the essentialfunctions of the positions he wished to hold.2 Accordingly, hisclaim under the ADA must fail.2. Reasonable AccommodationUnder the ADA, when an individual has a disability, his orher employer must accommodate the limitations resultingfrom that disability to the extent an accommodation is"reasonable" and does not unduly burden the employer. Thequestion of what constitutes a "reasonable" accommodationhas been the subject of much litigation across this countrysince Congress passed the ADA in 1990. The ADA gives onlygeneral guidance, stating that reasonable accommodation"may include . . . job restructuring, part-time or modifiedwork schedules, reassignment to a vacant position, acquisitionor modification of equipment or devices, . . . and other similaraccommodations for individuals with disabilities. " S 12111(9)(B) (emphasis added). As a result, a body of case law, rapidlygrowing, has sprung up to provide further guidelines for thecourts in this difficult area. Whether a particular accommoda-tion is reasonable depends on the circumstances of the indi-vidual case. (a) Plaintiff's Burden[4] Before we can reach the question of whether a particu-lar accommodation is reasonable, we must address a prelimi-nary question: Which party bears the burden of establishingthe availability or existence of reasonable accommodation? Inother words, does the plaintiff have to point, for example,merely to one possible accommodation and the defendant thenhave to show that reasonable accommodation did not exist, ordoes the plaintiff have to show that a specific reasonableaccommodation was available to the defendant at the timeplaintiff's limitations became known? This is an issue of firstimpression in this circuit. This circuit has, however, previ-ously noted that the ADA places on the plaintiff the burdenof showing that he or she is qualified, i.e., that he or she canperform the essential functions of the job with or without rea-sonable accommodation. See Cooper v. Neiman MarcusGroup, 125 F.3d 786, 790 (9th Cir. 1997); Kennedy v.Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996). We holdnow that this prima facie burden on the plaintiff-employeeincludes the burden of showing the existence of a reasonableaccommodation. This holding is dictated by the plaintiff'sburden to show that an accommodation is reasonable. In orderto be reasonable, an accommodation cannot be merely hypo-thetical. As part of his or her prima facie case, the plaintiffmust show the existence of a position that he or she could per-form either with or without specific reasonable accommoda-tion. See Foreman v. Babcock & Wilcox Co., 117 F.3d 800,810 (5th Cir. 1997) (holding that the plaintiff must show thata requested position is or was available which the plaintiffcould perform), cert. denied, 118 S. Ct. 1050 (1998); Willisv. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (holdingthat the ADA places on the plaintiff the burden of "producingprobative evidence that reasonable accommodations wereavailable"); Bombard v. Fort Wayne Newspapers, Inc., 92F.3d 560, 563-64 (7th Cir. 1996) (holding that the plaintiff-employee must establish that he or she could perform theessential functions of his or her job with or without reasonableaccommodation); Monette v. Electronic Data Sys. Corp., 90F.3d 1173, 1183 (6th Cir. 1996) ("[T]he disabled individualbears the initial burden of proposing an accommodation andshowing that that accommodation is objectively reasonable.");White v. York Int'l Corp., 45 F.3d 357, 361 (10th Cir. 1995)(holding that the plaintiff must show that accommodation ispossible, the employer must then show inability to accommo-date, and the plaintiff must then produce concrete suggestionsfor possible accommodations). But see Stone v. City of MountVernon, 118 F.3d 92, 98 (2d Cir. 1997) (holding that plaintiffmust merely " `suggest the existence of a particular plausibleaccommodation,' " which the defendant must then show isunreasonable), cert. denied, 118 S. Ct. 1044 (1998).[5] By recognizing the plaintiff's burden in court to showthe existence of a specific accommodation, we do not meanto suggest that an employer does not have any role in assess-ing and finding a reasonable accommodation for a disabledemployee at the time that limitations become known. More-over, we are not suggesting that, in order for an accommoda-tion to be reasonable, the employee must have suggested it tothe employer. We simply mean that, following discovery, theplaintiff in an ADA discrimination suit must be able to pointto at least one specific reasonable accommodation that wasavailable to the employer (but which the employer presum-ably did not pursue). Once the plaintiff has established theexistence of reasonable accommodation that would enablehim or her to perform the essential functions of an availablejob, the burden switches to the defendant to show that thisaccommodation would constitute an undue hardship. See 42U.S.C. S 12112(b)(5)(A). (b) Barnett's Proposed Accommodations[6] In this case, Barnett made three concrete suggestions tohis employer for accommodation of the limitations created byhis disability. He has not suggested any additional possibleaccommodations in court. The accommodations at issue there-fore are the three Barnett requested in letters to U.S. Air: (1)that U.S. Air create an exception for him within its senioritysystem and allow him to remain in the swing-shift mailroomposition, (2) that U.S. Air purchase special lifting equipmentto enable him to serve in the cargo position, or (3) that U.S.Air alter the cargo position so that Barnett would performonly desk work. We will examine these suggested accommo-dations one by one to see whether they are reasonable. (i) Swing-Shift Position in the Mailroom Barnett requested that U.S. Air make an exception for himwithin U.S. Air's seniority system and leave him in the swing-shift mailroom position. Barnett argues that it would havebeen a reasonable accommodation for U.S. Air to make suchan exception. We do not agree.The question of whether reasonable accommodationrequires an employer somehow to exempt a disabledemployee from its seniority system is a question that has gen-erated many pages in law reviews, see, e.g., Condon A.McGlothlen & Gary N. Savine, Eckles v. Consolidated RailCorp.: Reconciling the ADA with Collective BargainingAgreements: Is this the Correct Approach?, 46 DePaul L.Rev. 1043 (1997), but is a question of first impression in thiscircuit.[7] The ADA itself provides minimal guidance. It statesthat reasonable accommodation "may include . . . reassign-ment to a vacant position," 42 U.S.C. S 12111(9)(B), but issilent regarding the effect of seniority systems on whether aposition is actually "vacant." This silence becomes conspicu-ous when contrasted to Congress' explicit permission in TitleVII of the Civil Rights Act for employers to treat employeesdifferently pursuant to a "bona fide seniority or merit system."42 U.S.C. S 2000e-2(h). This silence then suggests that Con-gress did not intend for a seniority system always to trumpreasonable accommodation of a disabled employee. Rebuttingthis conclusion, however, is the history of the RehabilitationAct, on which many of the provisions of the ADA werebased. The Rehabilitation Act likewise did not have anexplicit mention of seniority systems. Nevertheless, federalcourts almost uniformly adopted a per se rule that reasonableaccommodation under the Rehabilitation Act did not requireemployers to infringe on the seniority rights of other employ-ees. See, e.g., Mason v. Frank, 32 F.3d 315, 319-20 (8th Cir.1994); Shea v. Tisch, 870 F.2d 786, 789-90 (1st Cir. 1989).But see Buckingham v. United States, 998 F.2d 735, 741-42(9th Cir. 1993) (distinguishing the other cases by noting thatthe seniority program in this case included an exception forexceptional circumstances which could apply to the disabledemployee). The precedent established by reasonable accom-modation cases under the Rehabilitation Act is widely used tointerpret reasonable accommodation under the ADA, alongwith the ADA's list of possible accommodations (which wasnot in the Rehabilitation Act). Congress specified in the ADAthat enforcement agencies were to ensure that standards underthe ADA and the Rehabilitation Act are not inconsistent orconflicting. See 42 U.S.C. S 12117.The ADA's ambiguous legislative history is of little help indetermining whether seniority policies should be treated thesame under the ADA and the Rehabilitation Act. On onehand, there is evidence that Congress considered seniorityrights to be merely one factor in reasonable accommodationanalysis under the ADA, rather than a dispositive factor. SeeS. REP. NO. 101-116, at 32 (1989) ("The collective bargainingagreement could be relevant, however, in determiningwhether a given accommodation is reasonable. For example,if a collective bargaining agreement reserves certain jobs foremployees with a given amount of seniority, it may be consid-ered as a factor in determining whether it is a reasonableaccommodation to assign an employee with a disability with-out seniority to that job."); H.R. REP. NO. 101-485, pt. 2, at63 (1990) (same language), reprinted in 1990 U.S.C.C.A.N.303, 345. On the other hand, the House and Senate Reportsalso state that reasonable accommodation does not require"bumping" a more senior employee to create a vacancy(although if the employer chose to do so, such bumpingwould constitute reasonable accommodation). See S. REP. NO.101-116, at 32 (1989); H.R. REP. NO . 101-485, pt. 2, at 63(1990), reprinted in 1990 U.S.C.C.A.N. 303, 345.[8] In the face of this ambiguity, we are persuaded by well-reasoned opinions from other circuits that have concluded thatthe ADA does not require an employer to give disabledemployees preference over nondisabled employees in hiringand reassignment decisions. But this is precisely what Barnettrequests. U.S. Air's seniority system is a decades-old systemwhich controls the duty assignments, shifts, transfers, holi-days, etc. of U.S. Air's approximately fourteen thousand cus-tomer service agents. Barnett does not claim that U.S. Air'spolicy is illegitimate and an excuse for unlawful discrimina-tion. But Barnett does claim that U.S. Air should have lefthim in the mailroom position, thus excepting him from itsseniority policy, because of his disability. Although manyADA cases have held that reasonable accommodation doesnot require exempting a disabled employee from a collec-tively bargained seniority system, see, e.g., Foreman v. Bab-cock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997);Cochrum v. Old Ben Coal Co., 102 F.3d 908, 912-13 (7th Cir.1996); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051(7th Cir. 1996) (adopting a "per se" rule that reasonableaccommodation does not require "sacrificing the collectivelybargained, bona fide seniority rights of other employees");Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8thCir. 1995), Barnett argues that his case is different becauseU.S. Air's seniority policy is not the result of a collective bar-gaining agreement. We reject this argument and agree with aFifth Circuit panel that, in dicta, found Barnett's claimed dis-tinction to be irrelevant. In Foreman v. Babcock Wilcox Co.,117 F.3d 800 (5th Cir. 1997), the Fifth Circuit rejected a dis-abled employee's claim that the ADA required his employerto reassign him to a new position even in the face of a collec-tively bargained seniority provision that would prohibit therequested transfers. The Court rejected the employee's argu-ment, making clear that its decision was not based on the spe-cial status of collective bargaining agreements. [E]ven if there were no CBA in place, B & W would not be obligated to accommodate Foreman by reas- signing him to a new position. "[W]e do not read the ADA as requiring affirmative action in favor of indi- viduals with disabilities, in the sense of requiring disabled persons be given priority in hiring or reas- signment over those who are not disabled. It prohib- its employment discrimination against qualified individuals with disabilities, no more and no less."Foreman, 117 F.3d at 810 (quoting Daugherty v. City of ElPaso, 56 F.3d 695 (5th Cir. 1995)).[9] We agree with the Daugherty court and the other cir-cuits that have interpreted the ADA as requiring no more thanequality among disabled and nondisabled employees in hiringand reassignment decisions. This principle was well articu-lated by a recent Seventh Circuit panel: While Congress enacted the ADA to establish a "level playing field" for our nation's disabled work- ers, it did not do so in the name of discriminating against persons free from disability. Restated, the ADA does not mandate a policy of "affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given pri- ority in hiring or reassignment over those who are not disabled."Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7thCir. 1998) (quoting Daugherty, 56 F.3d at 700); see alsoDalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 679(7th Cir. 1998) ("[W]e have been unable to find a single ADAor Rehabilitation Act case in which an employer has beenrequired to reassign a disabled employee to a position whensuch a transfer would violate a legitimate, nondiscriminatorypolicy of the employer, and for good reason. The contrary rulewould convert a nondiscrimination statute into a mandatorypreference statute, a result which would be both inconsistentwith the nondiscriminatory aims of the ADA and an unrea-sonable imposition on the employers and coworkers of dis-abled employees.") (internal citations omitted); Wernick v.Federal Reserve Bank of New York, 91 F.3d 379, 384-85 (2dCir. 1996) ("Congress intended simply that disabled personshave the same opportunities available to them as are availableto nondisabled persons."); Duckett v. Dunlop Tire Corp., 120F.3d 1222, 1225 (11th Cir. 1997) ("We are aware of no caseunder either the ADA or the Rehabilitation Act where anemployer has been required to transfer an employee toanother position where the employer (independent of con-cerns about disability) has a business policy against the perti-nent kind of transfer."). But see Aka v. Washington HospitalCenter, 156 F.3d 1284, 1305 (D.C. Cir. 1998) (en banc) (not-ing that "[a]n employer is not required to reassign a disabledemployee in circumstances `when such transfer would violatea legitimate, nondiscriminatory policy of the employer,' " butalso arguing against the dissent's claim that the ADA"mandat[es] nothing more than that the employer allow thedisabled employee to submit his application along with all ofthe other candidates.").[10] Because Barnett's proposed accommodation wouldviolate U.S. Air's legitimate seniority policy, we find that theproposed accommodation is unreasonable under the ADA. (ii) Special Lifting Equipment[11] Barnett suggests that U.S. Air should have purchaseda "robotics" machine to enable him to perform the liftingrequired by the cargo position. Barnett has not shown that thisspecial lifting equipment would provide him with any accom-modation of his disability not already provided by the forkliftsfurnished in cargo. An employer is not required to provide adisabled employee with the most technologically advancedequipment. See 29 C.F.R. S 1630.9 app.S 1630.9 ("[A]nemployer would not have to provide an employee disabled bya back impairment with a state-of-the-art mechanical liftingdevice if it provided the employee with a less expensive ormore readily available device that enabled the employee toperform the essential functions of the job."). Because Barnetthas not shown its requisiteness, U.S. Air did not have to pur-chase special lifting equipment for him. (iii) Modification of Cargo Position[12] Barnett's third and final suggestion for accommoda-tion of his disability is that U.S. Air could have modified theshift requirements of the cargo position so that he was onlyrequired to perform desk work. The district court found thatthe cargo position's essential functions included clerical,warehouse, and driving functions. Barnett has not shown thata genuine issue of material fact exists as to whether cargoemployees were required to lift and move cargo; the evidenceis clear that they were. Reasonable accommodation does notrequire that an employer eliminate or reassign essential jobfunctions. See 42 U.S.C. S 12111(8) (defining a "qualifiedindividual" as one who can perform the essential functions ofthe job desired); Foreman v. Babcock & Wilcox Co., 117 F.3d800, 809-810 (5th Cir. 1997), cert. denied, 118 S. Ct. 1050(1998); Cochrum v. Old Ben Coal Co., 102 F.3d 908, 913 (7thCir. 1996). Nor does an employer have to alter fundamentallythe nature of a job in order to accommodate a disabledemployee. See White v. York Int'l Corp., 45 F.3d 357, 362(10th Cir. 1995). Likewise, an employer does not have tocreate a new position in order to accommodate reasonably adisabled employee. See Monette v. Electronic Data Sys.Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); White, 45 F.3d at362; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied,
516 U.S. 1172
(1996). U.S. Air did nothave to restrict the cargo position to its clerical functions forBarnett in order to accommodate his disability.In summary, Barnett has failed to show that U.S. Air'srefusal to allow him to remain in the mailroom was a refusalto accommodate reasonably his disability. We do not agreethat it was U.S. Air's responsibility to find or create a job forhim given that Barnett has not shown that there was any posi-tion that he could perform with reasonable accommodation.See Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir.1997) (holding that plaintiff failed to meet her burden becauseshe did not produce any evidence that an available alternativeposition existed).3. Interactive ProcessBarnett asserts that an employer has an obligation under theADA to engage in an "interactive process" with its disabledemployee independent from its obligation to make reasonableaccommodation. The phrase "interactive process" refers todiscussions between the employer and the disabled employeeregarding the employee's limitations and possible accommo-dations. Barnett argues that an employer's failure to engagein an interactive process alone exposes an employer to liabil-ity under the ADA. The district court agreed with Barnett, butfound that U.S. Air had sufficiently engaged with Barnett toavoid process liability. We do not agree with the districtcourt's holding that an employer can be independently liablefor failing to engage in an interactive process.[13] The ADA authorizes the Equal Employment Opportu-nity Commission ("EEOC") to issue regulations enforcing theADA. See 42 U.S.C. S 12116. The regulations issued by theEEOC define "reasonable accommodation" in the same man-ner as the ADA, and add: To determine the appropriate reasonable accommo- dation it may be necessary for the [employer] to ini- tiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.29 C.F.R. S 1630.2(o)(3). The appendix to the regulations,intended as "interpretive guidance," adds: Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to deter- mine the appropriate accommodation. The appropri- ate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability.S 1630 app. S 1630.9. The appendix goes on to specify a four-part process that the employer "should" follow. S 1630 app.S 1630.9.[14] Barnett argues that an employee's first request foraccommodation triggers the employer's duty to initiate an"interactive process." The regulations, however, state onlythat an interactive process "may be necessary." S 1630.2(o)(3)(emphasis added). The regulations do not state that it isnecessary. We interpret this as permissive language whichalso serves as a warning to employers that a failure to engagein an interactive process might expose them to liability forfailing to make reasonable accommodation. As the appendixnotes, the employer "must make a reasonable effort to deter-mine the appropriate accommodation." S 1630 app. S 1630.9.This statement means that the employer will be liable for dis-crimination if a reasonable accommodation was available, butthe employer did not act upon it. The ADA and its regulationsdo not, however, create independent liability for the employerfor failing to engage in ritualized discussions with theemployee to find a reasonable accommodation. See Willis v.Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (holdingthat the plaintiff has the burden of showing available accom-modations and that the employer cannot be found liable"merely for failing to engage in the [interactive] processitself"); White v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir.1995) (noting that the regulations only recommend that aninteractive process occur, and only after the employee showsthat reasonable accommodation is available); Staub v. BoeingCo., 919 F. Supp. 366, 370 (W.D. Wash. 1996) (holding thatthe regulations only recommend an interactive process). Butsee Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997) (cit-ing ADA cases and holding that, under the Rehabilitation Act,"both parties have a duty to assist in the search for appropriatereasonable accommodation and to act in good faith, " but stat-ing that, in the absence of a reasonable accommodation, theemployer cannot be liable under the ADA or the Rehabilita-tion Act); Taylor v. Principal Fin. Group, 93 F.3d 155, 165(5th Cir.) (holding that "the employee's initial request for anaccommodation . . . triggers the employer's obligation to par-ticipate in the interactive process of determining one"), cert.denied, 117 S. Ct. 586 (1996); Beck v. University of Wis. Bd.of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (holding thatboth parties have a responsibility to participate in an interac-tive process and that "courts should look for signs of failureto participate in good faith or failure by one of the parties tomake reasonable efforts to help the other party determinewhat specific accommodations are necessary").[15] Barnett argues that our interpretation of the statuteexposes an employee to the "whim" of the employer's unilat-eral decisions regarding the employee's abilities. Barnettoverstates the vulnerability of the employee: If the employeris incorrect in its assessment of the existence of reasonableaccommodation that would not unduly burden the employer(given the employer's knowledge of the employee's abilities),the employer is liable under the ADA for failing to providereasonable accommodation. Thus, an employer's decision notto engage in an interactive process may put it at peril, but itdoes not create liability independent from a resulting failureto accommodate the employee's disability. Barnett's prof-fered rule could create a potential oddity under the law: Anemployer which had reasonably accommodated its employ-ee's disability could be liable nonetheless under the ADA forfailing to engage the employee interactively in the process.Moreover, it is not clear how such a rule would operate. Atwhat point would an employer incur process liability? When-ever it failed to perform one of the recommended steps in theinteractive process? Whenever it was merely slow in doingso?We agree that most, if not all, employers should engage inan interactive process with their disabled employees. Logi-cally, such a process will ensure an optimal accommodationof the employee's limitations. We do not agree, however, thatan employer's failure to do so exposes it automatically andindependently to liability under the ADA. Rather, the inquiryis whether the employer failed to make required reasonableaccommodations for the employee. A failure to engage in aninteractive process may be relevant to that inquiry; it is not aseparate inquiry.B. Retaliation under the ADABarnett also claimed that U.S. Air retaliated against him forhis request for accommodation under the ADA by placinghim involuntarily on job injury leave in January 1993 and byending his salary continuance in February 1993. The districtcourt granted U.S. Air summary judgment. We agree andaffirm.[16] The ADA prohibits retaliation against or interferencewith a person who has asserted rights under the ADA. See 42U.S.C. SS 12203(a) & (b). Because this circuit has not yetadopted a framework for analyzing retaliation claims underthe ADA, we now adopt the framework used to analyze retali-ation claims under Title VII of the Civil Rights Act. See, e.g.,Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) (setting outTitle VII framework); see also Talanda v. KFC Nat'l Man-agement Co., 1998 WL 159353 (7th Cir. 1998) (applyingTitle VII retaliation analysis to ADA retaliation claim);Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5thCir. 1998) (same); Steward v. Happy Herman's CheshireBridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (same).[17] In order to establish a prima facie case of retaliationunder the ADA, a plaintiff must show (1) that he or sheengaged in a protected activity, (2) that he or she suffered anadverse employment decision, and (3) that there was a causallink between the protected activity and the adverse decision.See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513-14 (9thCir. 1989) (applying Title VII retaliation claim analysis). Theemployer then has the burden of producing a legitimate non-discriminatory reason for the adverse employment decision.See id. at 1514. The plaintiff must then prove that the employ-er's proffered reason is mere pretext and that the decision wasmade as retaliation for the protected activity. See id.[18] The district court determined that Barnett had failed toshow a causal connection between his request for accommo-dation and his placement on job injury leave. The districtcourt probably erred. Barnett produced sufficient evidencefrom which the causal connection may be inferred by produc-ing evidence of the temporal proximity of the adverse actionto his request and of employer knowledge of his request. SeeYartzoff, 809 F.2d at 1376. Barnett's retaliation claim, how-ever, still cannot survive summary judgment.[19] U.S. Air met its burden to offer "some legitimate, non-discriminatory reason for the adverse employment decision."Hacienda Hotel, 881 F.2d at 1514. Upon receiving Barnett'srequest for accommodation, U.S. Air immediately created atemporary limited duty position for him, which Barnett heldfor over twice the usual maximum period. U.S. Air placedBarnett on job injury leave five months after his requestbecause Barnett's physical limitations, which were permanentaccording to his own doctors' reports, and his seniority levelat U.S. Air directed U.S. Air to the conclusion that a positionthat Barnett could perform was not available at U.S. Air. Inresponse, Barnett has to prove that the employer's profferedexplanation is "a mere pretext for retaliation or that a discrim-inatory reason more likely motivated the employer's action."Id. Barnett has failed to raise a genuine factual issue as towhether U.S. Air's legitimate reason for placing him on jobinjury leave was mere pretext. Barnett has not produced evi-dence to raise a triable issue as to whether U.S. Air made thedecision for retaliatory reasons, rather than because Barnettcould not perform an available position at U.S. Air.IV. ConclusionFor the foregoing reasons, the district court's summaryjudgment in favor of U.S. Air is AFFIRMED.
_____________________________B. FLETCHER, Circuit Judge, Dissenting:I respectfully dissent. The majority opinion diminishes theprotections of the Americans with Disabilities Act ("ADA")for disabled workers residing in the Ninth Circuit in ways notintended by the statute. First, the majority eliminates anemployer's responsibility to seek reasonable accommodationfor disabled workers by holding that employers have no obli-gation to engage in an "interactive process." Second, themajority establishes a rule rejecting accommodations underthe ADA in the context of all seniority systems, whetherdetermined by collective bargaining or unilaterally imposedby employers. Finally, in its application of the law to thefacts, the majority puts all of the burden on the employee notonly to proffer a reasonable accommodation but also to provethat the accommodation will work before the employer hasany obligation to the employee.Barnett proposed three solutions that would accommodatehis disability: (1) that he remain working in the mailroom; (2)that U.S. Air provide special lifting equipment to enable himto perform the cargo position; or (3) that U.S. Air allow himto do only the office-work portion of the cargo position andreassign his lifting work to other persons in the cargo opera-tion.In its dismissal of each of Barnett's claims, the majoritywould have us believe that no reasonable accommodation ispossible: that USAir's seniority system is intractable; thatforklifts satisfy any possible lifting accommodation that Bar-nett could seek; that reassignment of work amounts to creat-ing a new position; and that no other possible reasonableaccommodation exists.THE INTERACTIVE PROCESSAll that we know about potential accommodations is whatBarnett proposed. U.S. Air made no effort to determine if itcould reasonably accommodate Barnett, instead it simplyrejected Barnett's proposals as unworkable. Under the major-ity opinion, this is all U.S. Air, and any other employer, hasto do--sit on the sidelines and find fault with suggestedaccommodations. If the employer has no obligation to partici-pate in determining if a reasonable accommodation exists, thedisabled employee has no resource beyond his own knowl-edge, skill and ability. The employer's broader knowledgeand experience is not available to him. As a result, the effec-tiveness of the ADA as a tool to use constructively the skillsof disabled persons is seriously diminished.U.S. Air discriminated against Barnett by failing to engagein an "interactive process" to determine if a reasonableaccommodation was possible. The EEOC's implementingregulations for the ADA provide that: To determine the appropriate reasonable accommo- dation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.29 C.F.R. S 1630(o)(3). The Seventh Circuit has found thatthis regulation "envision[s] an interactive process thatrequires participation by both parties." Beck v. University ofWisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).The EEOC agrees. In the accompanying EEOC interpretiveguidance to the regulations, the EEOC states: [T]he employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best deter- mined through a flexible, interactive process that involves both the employer and the [employee] with a disability.29 C.F.R. S 1630 app. 1630.9. While the language of the reg-ulation uses "may," the interpretive guidance provided by theEEOC indicates that we should interpret "may" narrowly tocover only those circumstances where availability or non-availability of a reasonable accommodation is clear. The dis-trict court concluded that liability may be imposed upon anemployer for failing to engage in the interactive process.However, the majority reversed, finding that the use of "may"made the interactive process purely an option on the part ofa company. Majority at 13041-42.We need not and should not interpret the language ofS 1630.2(o)(3) as permissive. Section 1630.2(0)(3) states thatit "may be necessary" to initiate an interactive process. Theterm "may" describes the fact that sometimes there may bethe necessity to engage in an interactive process. When it isnecessary, it is not optional. "May" is not being used to createa permissive option. Only if it is clear that a reasonableaccommodation is available, or clear that there is no reason-able accommodation available, may an employer not initiatean interactive process with the disabled employee. In caseswhere accommodation may be possible, the interactive pro-cess is required. This interpretation of S 1630.2(o)(3) is con-sistent with the intent of the EEOC as evidenced by themandatory language used in the EEOC's interpretive guid-ance for the section. See S 1630 app. 1630.9.If this were an ideal world peopled by well intentionedemployers, clever employees and no informational barriers,the use of an interactive process to determine whether a rea-sonable accommodation exists could be optional. We do notlive in such a world. Some employers are unwilling to accom-modate disabled workers. Some employees can propose onlylimited ideas for accommodation because they lack sufficientknowledge, skill or ability to identify a workable accommoda-tion. Informational barriers are high. A reasonable accommo-dation may require detailed knowledge of a company's workflow and staffing, as well as knowledge of the available tech-nology that could be used in conjunction with the company'soperations. This is particularly true because, under the ADA,the term "reasonable" is tied to the resources and processes ofthe individual company. 29 C.F.R. S 1630.2(p)(2). So whatwould be reasonable for one company to implement may notbe reasonable for another. Determinations of reasonableaccommodation also require information about the worker'sdisability and the limitations that the disability imposes. Sincethe determination of a reasonable accommodation usually willrequire the sharing of information between employer andemployee, and since the EEOC expressly recognizes the needfor dialogue to determine a company's ability to accommo-date an employee, 29 C.F.R. S 1630, app. 1630.9, the interac-tive process is not optional except in those rare cases wherethe answer is clear.This is a case of first impression for the Ninth Circuit andother circuits that have addressed this issue are split onwhether a cause of action exists for failing to engage in aninteractive process. The Third, Fifth, and Seventh Circuitshave held that a cause of action exists.1 See Mengine v.Runyon, 114 F.3d 415, 419 (3d Cir. 1997) (finding that anemployer is required to participate in an interactive processunder the Rehabilitation Act); Taylor v. Principal FinancialGroup, Inc., 93 F.3d 155, 165 (5th Cir.) (finding that a requestfor accommodation obligates an employer to participate in theprocess of determining one, but that summary judgment wasstill appropriate because the plaintiff failed to request anaccommodation), cert. denied, 117 S. Ct. 586 (1996);Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281,1285-86 (7th Cir. 1996) (finding that an employer has a goodfaith obligation to help an employee determine a reasonableaccommodation and reversing the district court's summaryjudgment, holding that the employer has an obligation to helpan employee initiate a request for accommodation). But seeWhite v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir. 1995).(An employee first must be "qualified" (some accommodationin light of disability possible) before the employer is obligatedto engage in the interactive process); Willis v. Conopco, 108F.3d 282, 285 (11th Cir. 1997) (even if an employer has anobligation to participate in an interactive process, anemployee cannot bring a cause of action for an employer'sfailure to participate or investigate). Fjellestad v. Pizza Hut ofAmerica, Inc., No. 98-1071, 1999 WL 642958 (8th Cir. Aug.25, 1999) (Finding that the failure of an employer to engagein an interactive process to determine whether reasonableaccommodations are possible is prima facie evidence that theemployer may be acting in bad faith.)The burden imposed by requiring the interactive process isnot onerous. As the Seventh Circuit recognized, an employ-er's obligation under the interactive process is often no morethan to communicate with the employee and determine whatthe problem is. See Bultemeyer, 100 F.3d at 1286-87. Here,U.S. Air never even bothered to talk with Barnett.We should affirm the district court's finding that anemployer may be liable under the ADA for failing to partici-pate in the interactive process. However, I disagree with thedistrict court that summary judgment in USAir's favor isappropriate. Trial is necessary to determine whether the inter-active process was undertaken and, if so, whether it was ade-quate. The EEOC's interactive process requires an employerto: (1) Analyze the particular job involved and deter- mine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limita- tions could be overcome with a reasonable accom- modation; (3) In consultation with the individual to be accom- modated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; (4) Consider the preference of the individual to be accommodated and select and implement the accom- modation that is most appropriate for the employee and the employer.29 C.F.R. S 1630 app. 1630.9.Conflicting evidence in the record requires trial on whetherthere was compliance.BARNETT'S SUGGESTED ACCOMMODATIONSa. U.S. AIR'S Seniority SystemThe majority holds that U.S. Air's seniority system pre-cludes leaving Barnett in the mailroom as a reasonableaccommodation for his disability. The majority acknowledgesthat the legislative history does not clearly support its positionand admits that no other circuit has held that ADA accommo-dation is precluded by a seniority system which is not theresult of a collective bargaining agreement. The majorityrelies for its holding on dicta in a Fifth Circuit opinion that isbased on different facts.The majority cites a number of opinions from other circuitswhich have found that the ADA does not require exemptinga disabled employee from a seniority system established by acollective bargaining agreement. It imposes the same rule inthis case despite the fact that the U.S. Air's seniority systemwas unilaterally imposed by the employer and was not theproduct of a collective bargaining agreement.The majority holds that disabled workers requiring reason-able accommodation should have no priority in reassignment.Majority at 13036-37. This holding is in direct conflict withseveral circuits and the EEOC's own Enforcement Guidance.The EEOC's guidelines explicitly state that reassignment is areasonable accommodation for which disabled employeesshould have priority, even when transfers are normally notallowed: The ADA requires employers to provide reasonable accommodations to individuals with disabilities, including reassignment, even though they are not available to others. Therefore, an employer who does not normally transfer employees would still have to reassign an employee with a disability, unless it could show that the reassignment caused an undue hardship. And, if an employer has a policy prohibit- ing transfers, it would have to modify that policy in order to reassign an employee with a disability, unless it could show undue hardship.EEOC Enforcement Guidance: Reasonable Accommodationsand Undue Hardship under the Americans with DisabilitiesAct at 19 (1999).In Aka v. Washington Hospital Center, 156 F.3d 1284(D.C. Cir. 1998)(en banc), the D.C. Circuit rejected the viewthat the majority takes in this case, i.e., that the ADA requires"no more than equality among disabled and nondisabledemployees" in reassignment decisions. Majority at 13037.The Aka majority persuasively answered an argument identi-cal to that made by the majority here: "The dissenters misun-derstand both the text and legislative history of the statute,and deviate from the construction of the statute by other cir-cuits . . . . Indeed the ADA's reference to reassignment wouldbe redundant if permission to apply were all it meant." Id. at1303.The Tenth Circuit, sitting en banc, also rejected the argu-ment that the majority advances here. The Tenth Circuit con-cluded that "the reassignment obligation must meansomething more than merely allowing a disabled person tocompete equally with the rest of the world for a vacant posi-tion. Reassignment is, in fact, one of the forms of reasonableaccommodation specifically mentioned by the statute to beutilized if necessary and reasonable to keep an existing dis-abled employee employed by the company." Smith v. MidlandBrake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999)(en banc).Summary judgment was inappropriate in this case. Barnettmet his prima facie burden of demonstrating a reasonableaccommodation by allowing him to remain in the mailroomand eliminating only one position from the seniority bid pro-cess. The burden should now shift to U.S. Air to prove thatthe accommodation is unreasonable or an undue hardship. 42U.S.C. S 12112(5). In its rebuttal, U.S. Air offered only thestatement of its vice President for Human resources and acopy of its seniority policy. U.S. Air claims that the effect ofall potential ADA claimants would significantly disrupt theseniority system. Yet the record provides no information con-cerning the number of ADA claimants at U.S. Air, theirseniority, or their need to be accommodated by exceptions tothe seniority rules. Bald speculation on the part of the districtcourt and an employer is insufficient to support summaryjudgment on a finding of "undue hardship." Nothing in theADA supports finding that Barnett has the burden of provingthat his proffered accommodation would satisfy all possiblefuture claimants. Indeed, such proof would be outside theknowledge and control of almost all employees (and manyemployers).2The majority errs in creating a blanket rule that directlyconflicts with the EEOC Enforcement Guidance and thatseverely undermines the reasonable accommodation provi-sions of the ADA. U.S. Air has failed to demonstrate thataccommodating Barnett would cause undue disruption to itsseniority system and we should not assume so. Instead, weshould find that a triable issue of fact remains to be resolvedby the district court.b. Special Lifting EquipmentBarnett proposed that U.S. Air purchase a device to assisthim in loading and unloading cargo as a proposed accommo-dation to allow him to work in the cargo operations. Barnettsubsequently contacted the Job Accommodation Network,and obtained information on a number of mechanical liftingdevices designed to assist workers in lifting boxes and bags.Unfortunately, Barnett inartfully used the word "robotics" inhis initial request for accommodation. U.S. Air, and now themajority, focus on this poor choice of wording to suggest thatBarnett sought "technologically advanced equipment." Major-ity at 13039.The devices Barnett suggested that U.S. Air evaluate werequite "low-tech," but there is no evidence that U.S. Air evenconsidered them. Instead, U.S. Air told Barnett that forkliftswere available to assist in lifting. While U.S. Air need notprovide Barnett with "a state-of-the-art mechanical liftingdevice if it provide[s] . . . a less expensive or more readilyavailable device," 29 C.F.R. S 1630.9 app. 1630.9, its provi-sion of a forklift for lifting individual suitcases and other bagsis patently impractical. Proposing the use of a forklift to liftan individual suitcase is rather like giving Barnett a shotgunto swat a fly or a Phillips head screwdriver for a flat screw.U.S. Air might as well have told Barnett to use a backhoe.That a tool performs a similar function doesn't make it aproper tool for a particular job. Barnett sought a mechanicalaccommodation to compensate for his disability. U.S. Air, ineffect, ignored his request.The failure to explore appropriate lifting aids illustrateswhy the interactive process should have been mandatory inthis case. Barnett did all he could. He proposed an accommo-dation, then researched and suggested the type of equipmentfor that accommodation. U.S. Air refused to listen or assist.It made no inquiries into alternative lifting devices, refused totalk with Barnett about the accommodation, and merely pokedholes into the proposals Barnett put before it.The burden placed on Barnett by the majority is more thanhe should be required to bear. Since U.S. Air failed to evenconsider any of the special lifting equipment options profferedby Barnett, we cannot know if any of these accommodationswould have worked. Under the majority's interpretation of theADA, Barnett would have to purchase the machines sug-gested and prove their effectiveness before U.S. Air would beforced to accommodate him.I respectfully suggest that we should affirm the districtcourt's interpretation of the ADA, but remand for trial as toits application to this case.
___________________________FOOTNOTES 1 The effect of an accommodation on a company's workforce, processes,or finances is beyond the ability of many workers to assess. Yet this needto assess proprietary information in order to find an accommodation"reasonable", demonstrates why the EEOC requires employers to engagein an "interactive process" to determine an accommodation.1 U.S. Air failed to cross-appeal the district court's finding that Barnetthas a disability within the meaning of the ADA. We do not, therefore, con-sider whether he has a disability in light of this court's recent decision inThompson v. Holy Family Hosp., 121 F.3d 537 (9th Cir. 1997).2 Barnett does not contend that he could perform the essential functionsof the positions he desired without accommodation. He had to show,therefore, that he could perform the essential functions of an availableposition with reasonable accommodation.1 In addition the First Circuit has indicated that it also may find that acause of action exists. See Jacques v. Clean-up Group, Inc., 96 F.3d 506,513-14 (1st Cir. 1996) (finding that a cause of action may exist, but hold-ing that the jury verdict for the employer was not unreasonable).2 The effect of an accommodation on a company's workforce, processes,or finances is beyond the ability of many workers to assess. Yet this needto assess proprietary information in order to find an accommodation"reasonable", demonstrates why the EEOC requires employers to engagein an "interactive process" to determine an accommodation.